Pro bono as a prerequisite to admission: Where do we go from here?

Tuesday, May 08, 2012

New York Chief Judge Jonathan Lippman's decision to require 50 hours of pro bono service for admission to the bar was the talk of the legal profession on Law Day, and continues to light up the blogosphere, Twittersphere and beyond. My admiration for Lippman's efforts in support of access to justice for the poor and disadvantaged is boundless. His work has resulted in unparalleled visibility and a heightened sense of urgency in addressing the crisis in legal assistance to the poor and disadvantaged. His unrelenting campaign to secure increased state funding for legal services programs has set an example for leaders of the judiciary and bar associations around the country. I also applaud his courage in setting ambitious goals and his willingness to shake up the status quo — approaches desperately needed if we are to preserve the integrity of our justice system.

For a legal profession that in some sectors is experiencing "compassion fatigue" after decades of repeated calls for pro bono, Lippman's announcement is a wake-up call, leaving no doubt of the depth and seriousness of the "justice chasm," as I have termed it, between the growing need for legal assistance to the poor and the ever diminishing resources to meet that need. It also offers, as Lippman's comments have reflected, the potential to use pro bono to not only address the scarcity of free legal assistance resources, but also to serve as a partial solution to the skills gap that is endemic in the legal profession today. And, although we have limited data, there is an ocean of anecdotal evidence that exposing lawyers to pro bono service as early as possible in law school or practice results in a passionate, lifelong commitment to pro bono service.

The flip side, however, is equally true. While positive pro bono experiences at an early stage in a lawyer's career can cement a dedication to pro bono, negative pro bono experiences can have the opposite effect and create lifelong pro bono skeptics.

Lippman's initiative appears to be a fait accompli, but the all-important details remain to be ironed out. As we await the full plan, great thought and care must go into its implementation.

One concern that must be addressed as we move forward is the pressure that this initiative will place on an already underfunded, frayed and inadequate pro bono infrastructure. Since the Great Recession, legal services and public interest programs have seen their budgets and staffing slashed. Will they have the resources to increase intake of potential pro bono clients, train and supervise law students and others who may have little or no practical experience, and handle the administrative tasks associated with any mandatory pro bono model? Does the capacity exist in the current system — or can the system be reconfigured — to absorb and fully use these new pro bono volunteers? In the process of helping the system, do we run the risk of overburdening it?

What can and should be done to implement this program, to ensure that it works well for the lawyers, the courts and the profession, and, most importantly, for the eligible pro bono clients who need and deserve accessible and high quality legal services? Based on the experience of my organization, the Pro Bono Institute, in successfully taking pro bono to scale at major law firms and in-house legal departments, I would suggest the following preliminary steps: